PREITAUER v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY (2024)

ORDER

This matter is before the Court on two motions, both filed by Plaintiff, Tyler Preitauer. The first is a Request for Attorney Fees and Costs. (ECF No. 202.) The Second is a Motion Pursuant to Rule 59(e) to Amend Judgment. (ECF No. 218.) Defendant, American Family Mutual Insurance Company, S.I. (“American Family”) filed responses (ECF Nos. 219, 221) and Mr. Preitauer filed a Reply in support of his Motion for Attorney Fees. (ECF No. 220). The Court concludes that no Reply is necessary on the Motion to Amend Judgment. Thus, both Motions have now been fully briefed.

I. BACKGROUND

As the Parties well know, and as the Court recently set out in its Order resolving their other post-trial motions (ECF No. 210), this is a case that arose out of a car accident. Mr. Preitauer was injured in that accident that took place in 2017, and American Family was the provider of his car insurance. Mr. Preitauer was not at fault in the accident—he recovered the full amount of the at-fault driver's insurance coverage, which totaled $23,000. Mr. Preitauer suffered a back injury in the accident and has undergone extensive medical treatment. As a result, he sought uninsured/underinsured motorist benefits from American Family. In total he was covered by up to $500,000 in benefits. American Family issued multiple payments to Mr. Preitauer, but he still believed that they had not fully compensated him for his damages and he brought this suit in 2020. His suit included claims for breach of contract, breach of the common law duty of good faith and fair dealing, and statutory bad faith alleging that American Family had unreasonably delayed or denied his benefits pursuant to §§ 10-3-1115 and -1116, C.R.S.

This case has proceeded through litigation for four years. It went to trial in front of a jury. After Mr. Preitauer's evidence had been presented, this Court granted American Family's Motion for Judgment as a Matter of Law on his claim for breach of the common law duty of good faith and fair dealing, concluding that he had not presented sufficient evidence to permit a fact finder to conclude that American Family had acted with knowledge or reckless disregard of the fact that its conduct was unreasonable. The Court also granted American Family's Motion in part as to Mr. Preitauer's claim for breach of contract, concluding that he had not presented sufficient evidence that would allow a reasonable fact finder to conclude he had lost any future earning capacity. The remainder of the case proceeded and went to the jury following American Family's presentation of evidence. The Jury returned a verdict in favor of Mr. Preitauer on all remaining claims. The jury concluded that he had proved that he suffered $650,000 in economic damages, $250,000 in non-economic damages, and $185,000 in physical impairment damages. They jury also determined that American Family had unreasonably delayed or denied the $166,814.82 that remained of his insurance coverage.

The Parties timely filed post-trial motions and this Court issued an Order denying American Family's Motion for Judgment as a Matter of Law (ECF No. 198) and granting in part Mr. Preitauer's Motion for Entry of Judgment (ECF No. 197). (ECF No. 210.) The Court entered judgment awarding Mr. Preitauer $166,814.82 on his claim for breach of contract, as well as twice the covered benefit delayed or denied, $333,629.64, for a total of $500,444.46. (ECF No. 210.) The Court also expressly reserved ruling on Mr. Preitauer's Motion for Attorney Fees, which he had filed (ECF No. 202) but which had not been fully briefed, as well as on his costs. (ECF No. 210, p.3 n.2.) The Court now addresses those outstanding issues.

II. LEGAL STANDARDS

A. Fed. R. Civ. P. 59(e)

Rule 59(e) allows a district court to alter or amend a judgment. “ ‘Grounds warranting a [Rule 59(e)] motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.’ ” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1212 (10th Cir. 2012) (brackets in original) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). “A motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law, [but it] is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012; see also Matosantos Comm. Corp. v. Applebee's Int'l, Inc., 245 F.3d 1203, 1209 n.2 (10th Cir. 2001) (finding party waived theory that was not raised in original motion because a “motion for reconsideration is not ․ an opportunity for the losing party to raise new arguments that could have been presented originally”).

Although the question of attorney fees is generally considered collateral to the main cause of action and its merits, see White v. New Hampshire Dep't of Emp. Sec., 455 U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (concluding that a party's entitlement to statutory attorney fees raised “legal issues collateral to the main cause of action—issues to which Rule 59(e) was never intended to apply”), where, as here, the prevailing party is entitled to fees and costs, the failure to award such fees and costs can constitute a manifest injustice. In any event, to the extent that the prior judgment of the Court can be read to deny an award of attorney fees and costs, it would represent a clear error of law requiring amendment.

B. Section 10-3-1116, C.R.S.

Pursuant to Section 10-3-1115(1)(a) of the Colorado Revised Statutes, “[a] person engaged in the business of insurance shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party claimant.” Section 10-3-1116, C.R.S. provides the remedy for violations of this provision. Specifically, “[a] first-party claimant as defined in section 10-3-1115 whose claim for payment of benefits has been unreasonably delayed or denied may bring an action in a district court to recover reasonable attorney fees and court costs and two times the covered benefit.” 10-3-1116(1), C.R.S.

C. Attorney Fees and Costs

Generally, the “American Rule” provides that “the prevailing litigant is ordinarily not entitled to reasonable attorney's fees.” Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). “However, that general rule is subject to exception if the contract in question calls for a deviation from that rule or if the legislature dictates an alternative arrangement through statute.” Guarantee Tr. Life Ins. Co. v. Est. of Casper by & through Casper, 2018 CO 43, ¶ 23, 418 P.3d 1163, 1172; see also Travelers Cas. And Sur. Co. of America v. Pacific Gas and Elec. Co., 549 U.S. 443, 448, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007) (same). As noted above, in this case the statute at issue, Section 10-3-1116, C.R.S., provides for the recovery of attorney fees and court costs by the prevailing party.

Once the Court determines that a party is entitled to an award of attorney fees, however, it must still determine whether the amount of attorney fees requested is reasonable. In statutory fee–shifting cases “the lodestar method is generally employed in calculating attorney fees.” Brody v. Hellman, 167 P.3d 192, 204 (Colo. App. 2007). The lodestar calculation is the product of the number of attorney hours “reasonably expended” and a “reasonable hourly rate.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar amount is presumptively reasonable. Id. “Once an applicant for a fee has carried the burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be a reasonable fee as contemplated by Section 1988.” Cooper v. State of Utah, 894 F.2d 1169, 1171 (10th Cir. 1990).

“A ‘reasonable rate’ is defined as the prevailing market rate in the relevant community for an attorney of similar experience.” Etherton v. Owners Ins. Co., 82 F. Supp. 3d 1190, 1200 (D. Colo. 2015). “The party requesting fees bears ‘the burden of showing that the requested rates are in line with those prevailing in the community.’ ” Id. (quoting Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998)). “In order to satisfy his burden, plaintiff must produce ‘satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” Id. (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)).

In determining whether the hours expended on a case were reasonable, the Court considers several factors: (1) whether the fees are for tasks that would ordinarily be billed to a client; (2) whether the party's counsel used “billing judgment” to winnow the hours from those actually spent to those that were reasonably expended; and (3) whether the amount of time spent on a task was reasonable in light of the complexity of the case or necessitated by the strategies employed by the party's opponent. Id. at 1198. “Ultimately, the Court's goal is to fix a fee that would be equivalent to what the attorney would reasonably bill for those same services in an open market and fees will be denied for excessive, redundant, and otherwise unnecessary expenses. The burden is on the party requesting fees to prove that its counsel exercised proper billing judgment.” Id. at 1198-99 (citations omitted).

III. ANALYSIS

A. Motion to Amend Judgment under Rule 59(e)

As the Court explained above, to the extent that the prior Judgment could be read to deny Mr. Preitauer's request for attorney fees and costs, it represents a clear error. Pursuant to the statute at issue, section 10-3-1116, C.R.S., the prevailing party is entitled to recover reasonable attorney fees and court costs incurred in brining an action for the unreasonable delay or denial of insurance benefits. The Court, therefore, GRANTS Mr. Preitauer's Motion Pursuant to Rule 59(e) to Amend Judgment. (ECF No. 218.) The question of the amount of costs he should recover will be addressed in the ordinary course by the Clerk.

B. Attorney Fees

American Family appears to concede that Mr. Preitauer is entitled to recover attorney fees on his statutory bad faith claim. (ECF No. 215.) It makes a number of arguments, however, strongly contesting the amount of fees requested by Mr. Preitauer's attorneys. (Id.)

1. Reasonable Rates

As noted above, the Court considers the “prevailing market rate” in the community in order to determine what constitutes a reasonable rate for attorneys. Lippoldt v. Cole, 468 F.3d 1204, 1224 (10th Cir. 2006). “Plaintiffs must provide evidence of the prevailing market rate for similar services,” charged by lawyers with comparable skill and experience. Id. If the Court lacks sufficient evidence of the prevailing market rates, it can use its own knowledge of the legal market as well as other evidence of a reasonable market rate. Id. at 1225. In this case, Mr. Preitauer relies on prior decisions from this jurisdiction to support the rates its counsel charged. (ECF Nos. 202, 220.) American Family relies on the expert opinion of Mr. John Palmeri to argue the rates are too high. (ECF No. 215.)

In this case, Mr. Preitauer's counsel seeks a total of $892,259 in legal fees for 2,294.4 hours worked. Those fees break down as follows:

[Editor's Note: The preceding image contains the reference for footnote ¹ ].

(ECF No. 202, pp.7-8.) Thus, Mr. Preitauer's attorneys are requesting $550 per hour for the senior trial attorney, Mr. Anderson; $450 per hour for each associate who spent time working on the case; $200 per hour for each paralegal; $100 per hour for each legal assistant; and $450 per hour for the accountant who worked to prepare the motions for fees and costs. (ECF Nos. 202, 214.)

American Family's expert, Mr. Palmeri, opines that these rates are unreasonably high, “particularly going back seven years to 2017” when Mr. Preitauer was injured and when Mr. Anderson began his representation. (ECF No. 215-2, p.3.) Mr. Palmeri then suggests rates that he believes would have been reasonable for attorneys of similar experience in 2017. (Id.) Mr. Preitauer responds by correctly noting that the 10th Circuit has concluded that “[t]he hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed.” Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983), disapproved on other grounds by Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 721, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). At no point does Mr. Palmeri contend that the rates charged by Mr. Preitauer's attorneys are unreasonable in 2024. Yet, as set forth in Ramos, it is the 2024 legal market that dictates what is reasonable in this case.

The Court, therefore, rejects Mr. Palmeri's reasoning and looks instead to rates that have been approved by courts in this jurisdiction more recently. See, e.g., Curtis Park Group, LLC v. Allied World Specialty Ins. Co., No. 20-cv-00552-CNS-NRN, 2023 WL 5624981, at *6 (D. Colo. Aug. 31, 2023) (in statutory insurance delay case, determining that hourly rates of up to $940 for senior attorneys, up to $500 for associate attorneys, and up to $235 for a paralegal were in line with prevailing rates in the Denver market in 2023); U.S. General, LLC v. Guideone Mut. Ins. Co., 18-cv-01256-REB-NRN, 2022 WL 1302360 at *2-3 (D. Colo., Mar. 30, 2022) (concluding that rates up to $550 billed in an insurance case “tend toward the high end of reasonable rates for this type of litigation,” but that those rates were still “well within the reasonable range” in 2022).

Mr. Anderson, the senior trial attorney, has at least 23 years of experience as a trial attorney, prior to which he worked as an insurance claims adjuster and claims manager. (ECF No. 202-2.) The primary senior litigation associate who worked on this case, Carlo F. Bonavita, is also an experienced attorney with 20 years of experience in the profession, 15 years of which were specifically in the area of insurance cases. (ECF No. 202-3.) The Court also relies on its own knowledge of the Denver market. In light of the decisions in this jurisdiction and the Court's own knowledge of the market, the Court concludes that the rates charged by Mr. Preitauer's attorneys, both for their services and for the work of their non-attorney employees, are reasonable.

American Family also argues that expenses that represent overhead, which it contends includes the time of legal assistants and the accountant in this case, should not be awarded. (ECF No. 215, p.6.) The Court disagrees. When the services of a non-attorney are directly attributable to the specific case, as long as the fees for those services are not otherwise reflected in the attorneys’ fees as overhead, the Court can evaluate them in the same manner as it considers fees sought for attorney time. Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir. 1998); Baxter Construction Co., LLC v. SF Construction, Inc., No. 22-cv-01117-NYW, 2024 WL 1537998 at *4 (D. Colo. April 9, 2024).

2. Reasonable Hours Expended

American Family makes several additional arguments as to why the hours expended by Mr. Preitauer's attorneys were not reasonable and asserts that this Court should reduce the award. It argues that (1) the records include some that were reconstructed which generally represent either an overstatement or understatement of time actually expended; (2) the use of “block billing” prevents this Court from identifying time spent on compensable tasks; (3) certain tasks were duplicative, such as conferences amongst multiple attorneys; (4) time spent “getting up to speed” on the case by new members of the team should not be awarded; (5) tasks took longer than reasonably expected; and (6) the attorney fees should be reduced to reflect the fact that they only achieved partial success on Mr. Preitauer's claims. (ECF No. 215.)

With regard to American Family's first two arguments, the Court notes, (and American Family concedes), the use of reconstructed time records and/or block billing are not per se fatal to a fee request. See Ramos, 713 F.2d at 553, n.2; Etherton, 82 F.Supp.3d at 1197; Rockhill Ins. Co. v. CFI-Global Fisheries Mgmt., 591 F.Supp.3d 1020, 1026 (D. Colo. 2021). Rather, those billing practices require the Court to give special scrutiny to time reconstructed, Etherton, 82 F.Supp.3d at 1197, and to determine whether the block time entries include both compensable and uncompensable tasks, Rockhill Ins. Co., 591 F.Supp.3d at 1026. While the burden rests with Mr. Preitauer, as the prevailing party, to demonstrate the reasonableness of the fees requested, American Family cannot simply point to the method used to track that time as though it is, per se, proof that the time expended was unreasonable. American Family has not identified any unbillable tasks on the time records submitted by Mr. Preitauer's attorneys. In its own review, the Court has not found any such tasks. As the Supreme Court concluded, “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). Thus, “trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” Id. In this case, the Court concludes that the use of reconstructed records and block billing do not prevent the Court from evaluating the reasonableness of the time expended by Mr. Preitauer's attorneys. And, having reviewed the records, the Court does not see evidence of overbilling or the billing of uncompensable tasks.

The Court has also reviewed the billing records in order to determine whether, as American Family contends, there were significant amounts of duplication of efforts or inefficient staffing. American Family makes vague reference to “multiple conferences occurring amongst multiple attorneys and other staff members at the law firm.” (ECF No. 215, p.13.) The Court cannot conclude, however, that such coordination between members of a litigation team is necessarily and by definition unreasonable. In a case with a history spanning seven years, the Court finds it unexceptional that members of Mr. Preitauer's legal team needed to spend some time coordinating their work—in order to prevent the very sort of waste of which American Family complains.

The Court also disagrees with Mr. Palmeri's conclusion that the use of four associate attorneys and nine paralegals necessarily represents inefficiencies in the management of this case. The Court again notes that this litigation spanned over seven years. The idea that associate-level attorneys and support staff would turn over in a small legal office seems entirely unremarkable. The Court has reviewed the time logs and has noticed that at no time were two associate attorneys billing on this case—each took over the matter in succession. (ECF No. 202-1.) Similarly, while there was some overlap among the paralegals working on the case, it appears to have been minimal, and generally no more than two paralegals were billing time to this matter during the same period. (Id.) While some associates and paralegals worked only for a short period of time on the matter, that does not negate the fact that the time billed was used for the purposes of this litigation of this case and not on other billable matters.

American Family next objects to time that it asserts was spent by new members of the team “getting up to speed” on the case. (ECF No. 215, p.13.) American Family does not identify, however, any entries that reflect time spent in that way. Mr. Preitauer appears to concede that there is one such entry included in his fees request, which entry was for 3.1 hours of paralegal time and totaled $620 in fees. (ECF No. 220, p.12.) The Court has reviewed the remainder of the time log and has identified one additional entry that it concludes is properly classified as “getting up to speed”—one of the associates assigned to the matter entered 4.4 hours of time, described as follows: “Goal to get R4E out before end of year, spoke with Traci about process, met with Peter and go[t] a few sample demands, we are waiting on a few records, but it was a good first time intro to insurer demand.” (ECF No. 202-1, p.24.) That entry was for a total of $1,980 in billable time. (Id.) The Court agrees that the prevailing party should not properly charge for time spent by the attorneys and their staff to familiarize themselves with the case, and therefore those two amounts will be disallowed. The Court sees no additional entries indicating that Mr. Preitauer's attorneys have sought to recover for time spent that way, and therefore no additional amounts need be reduced on that basis.

American Family's fifth argument is that “tasks took longer than reasonably expected.” (ECF No. 215, p.13.) American Family then points to the time spent on drafting the Complaint, by both attorneys and paralegals, and states that it was excessive. (Id. pp.13-14.) American Family contends that the 28.85 hours spent was “at least 3 times the amount that would be reasonable” and that even one third of that amount of time, 9.6 hours “seems too long.” (Id.) American Family provides no support for that contention other than its say-so. Its expert, Mr. Palmeri, does not break down the time spent by Mr. Preitauer's attorneys to such a detailed level. (ECF No. 215-2.) Rather, he asserts that “[a]ccording to the time log, Mr. Anderson spent 911.5 hours on this matter. This appears to be an unreasonably high number given the nature of this matter.” (Id.) He then makes a similar claim with regard to the time of the primary senior associate on the case, Mr. Bonavita, who billed 347.5 hours, the primary paralegal, Ms. MacKay, who spent 480.4 hours, and the other key paralegal, Ms. Hafner, who billed 239.6 hours. (Id.)

In total, Mr. Preitauer's attorneys and their staff spent approximately 2,295 hours on this matter. That time was expended over the course of seven years, from the time Mr. Preitauer first sought assistance to obtain payment from American Family for his injuries, in 2017, through four years of litigation and the conclusion of a seven-day trial in March of 2024. The Court notes that Courts in this jurisdiction have concluded that attorneys reasonably expended almost double the number of hours to prosecute an insurance bad faith case. See, e.g., Curtis Park Group, LLC, 2023 WL 5624981, at **1, 6 (concluding that attorneys reasonably expended 3,913.35 hours); see also Rockhill Ins. Co., 591 F.Supp.3d at 1027 (concluding hours requested were reasonably expended); Rockhill Ins. Co., No. 16-cv-02760-RM-MJW, ECF No. 306 (requesting compensation for 3,341.45 hours). Given the length of the representation in this case, as well as the result obtained for Mr. Preitauer, the Court cannot conclude that it should make an across-the-board reduction to the allowable hours expended.

The Court does agree with American Family, however, that some reduction is appropriate to reflect that Mr. Preitauer's attorneys did not succeed on all of the claims raised. Where a party achieves only partial or limited success, “it may be appropriate to discard the hours expended on unsuccessful claims.” San Luis Valley Ecosystem v. United States Forest Service, No. 04-cv-01071-MSK, 2009 WL 792257 at * 5 (D. Colo. March 23, 2009). “The time identifiably spent on unsuccessful claims is fair game for elimination if those claims were ‘distinct in all respects from the successful claims.’ ” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005) (quoting Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1103 (10th Cir. 2005)). If, however, the unsuccessful claims involve a common core of facts and are based on legal theories related to those underpinning the successful claims, then the Court need not attempt to allocate the work between the claims. Rockhill Ins. Co., 591 F.Supp.3d at 1026-27.

In this case, American Family notes that the Court rejected the portion of Mr. Preitauer's breach of contract claim for a loss of earning capacity on a Rule 50(a) Motion. (ECF No. 215, p.11.) The Court also rejected his claim for a breach of the common law duty of good faith because it concluded that he had failed to present evidence that American Family acted with knowledge or reckless disregard of the fact that its conduct was unreasonable. American Family points to 23 time entries that it asserts are related to the Rule 35 exams performed to assess Mr. Preitauer's functional capacity, which were related to his claim for loss of earning capacity. (Id. pp.11-12.)

Mr. Preitauer's attorneys argue that the time spent preparing on those matters was intertwined with the remaining claims. (ECF No. 220, p.13.) Specifically, they contend that, although earning capacity damages were excluded from the breach of contract claim, the examinations performed on Mr. Preitauer regarding his functional capacity were nevertheless also relevant to prove his physical limitations, which was a central fact supporting his other claims. (Id.) They concede, however, that “[t]o the extent that the Court is inclined to reduce this time, it should only reduce it by a maximum of 50% given half of it remained relevant to the unreasonable delay and denial claims.” (Id.) Mr. Preitauer's attorneys do not appear to dispute that the time entries listed by American Family were all related to the Rule 35 exams and the evaluation of Mr. Preitauer's functional capacity.

The Court has reviewed those entries and, in light of the applicable billing rates for each individual, has calculated the total sought by Mr. Preitauer's attorneys for that work is $11,795. In light of the apparent concession that these entries were related to the Rule 35 exams, the Court concludes that it is appropriate to reduce the total amount awarded for that time. It agrees, however, with Mr. Preitauer's attorneys that it should not eliminate all compensation for that time because that evidence did, in fact, assist Mr. Preitauer in proving his successful claims. The Court therefore determines that the total awarded for those hours should be reduced by 50%, or $5897.50.

Finally, the Court notes that American Family appears to argue that the Court should limit its award of attorney fees to only those incurred in the successful prosecution of Mr. Preitauer's statutory unreasonable delay claim, and that, furthermore, it should not award any fees incurred during the time before American Family made its final pre-trial payment on December 1, 2023. (ECF No. 215, p.8.) The Court concludes, however, that the Colorado Court of Appeals has already rejected this precise argument: “[the Defendant] argues that the window for attorney fees allowed pursuant to section 10-3-1116 is limited to the period from the date the benefit was first delayed to the date the benefit was actually paid. As a matter of first impression, we reject the argument.” Nibert v. Geico Casualty Co., 488 P.3d 142, 149 (Colo. App. 2017). Nor does American Family cite to any authority that the time spent pursuing the breach of contract claim must be excluded from the award of attorney fees. The Court is persuaded by the Nibert decision that, in fact, it is not required to do so. In any event, the Court concludes that the claim for breach of contract is so intertwined with the statutory claim for unreasonable delay or denial of an insurance benefit that it could not separate the fees due on each, even if it were inclined to do so.

For the reasons set forth herein, the Court concludes that Mr. Preitauer has demonstrated the reasonableness of his attorney's fees except that the amounts spent “getting up to speed” must be excluded and half of the time spent on Rule 35 examinations, which can be fairly attributed to his unsuccessful claim for lost earning potential as part of his breach of contract, should be excluded. Those amounts total $8,497.50. The Court therefore GRANTS the Motion for Attorney Fees IN PART and awards Mr. Preitauer attorney fees in the total amount of $883,761.15.

IV. CONCLUSION

Therefore, for the reasons set forth herein, the Court ORDERS as follows:

(1) That Mr. Preitauer's Request for Attorney Fees and Costs (ECF No. 202) is GRANTED IN PART and DENIED IN PART;

(2) That Mr. Preitauer's Motion Pursuant to Rule 59(e) to Amend Judgment (ECF No. 218) is GRANTED;

(3) That amended judgment shall enter in favor of Plaintiff Tyler Preitauer and against Defendant American Family Mutual Insurance Company, S.I. on the Plaintiff's claim for breach of contract in the amount of $166,814.82;

(4) That amended judgment shall enter in favor of Plaintiff Tyler Preitauer and against Defendant American Family Mutual Insurance Company, S.I. on the Plaintiff's claim for unreasonable delay or denial of insurance benefits pursuant to section 10-3-1116(1), C.R.S. in the amount of $333,629.64, which represents twice the covered benefit found by the jury to be $166,814.82;

(5) That amended judgment shall enter in favor of Plaintiff Tyler Preitauer and against Defendant American Family Mutual Insurance Company, S.I. for attorney fees in the amount of $883,761.15;

(6) That amended judgment shall enter in favor of Plaintiff Tyler Preitauer and against Defendant American Family Mutual Insurance Company, S.I. for costs in an amount to be determined in the ordinary course by the Clerk; and

(7) That, pursuant to 28 U.S.C. § 1961, post-judgment interest shall run from today on the amounts awarded herein until the date of payment.

FOOTNOTES

1.   The Court notes that the total amounts throughout this column reflect the amounts submitted by Mr. Preitauer's attorneys. (ECF No. 202, pp.7-8.) The Court will not undertake the task of correcting the Parties’ math. The Court, however, is also comfortable that in declining to correct the mathematical calculations the overall award to Mr. Preitauer's counsel is not increased.

RAYMOND P. MOORE, Senior United States District Judge